Can my landlord start a no smoking policy after I move in?

The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," runs in the Champaign News Gazette.

Question

My landlord says the complex I live in will become “no smoking” on January 1, so that I’ll no longer be able to smoke inside my apartment. I’ve lived here for years. Can they do that?

Answer

There’s no right to smoke, so it’s legal for landlords to prohibit smoking. And they can adopt a no smoking policy after you move in, if they do it right. They’ll either have to wait til your lease renews, or—in subsidized housing—follow the HUD procedures for adopting a new rule.

Leases are contracts, which can’t be changed unilaterally. A landlord, for example, has no more right to increase the rent in the middle of a lease than you have to decrease it.

It’s the same with trying to change any other lease provision mid-stream. If both parties don’t agree to the change, one side can’t impose the change on the other.

A no smoking policy would be just like a no pets policy. To be enforceable, it must be in the lease. If it’s not in your lease now, it can’t be added until that lease is renewed.

In subsidized housing, it’s slightly different. HUD regulations permit house rules, which can be customized locally to supplement the standard nation-wide HUD lease each tenant signs. Those regulations allow rules to be amended upon 30 days notice.

That would permit a landlord in subsidized housing to adopt a no smoking rule by January 1, by giving 30 days written notice.

But if you live in regular housing, not subject to federal regulations, the landlord will have to wait until your next lease renewal to add a no smoking policy.

Then, as at any lease renewal, your options are to sign, or move somewhere else. It’s a stark take-it-or-leave-it choice.

Month-to-month leases renew every month, so can be changed more frequently than longer-term leases. Changing a month-to-month lease requires 30 days advance written notice.

That notice must give you at lease 30 days before your next rent payment is due, so you have a full rent cycle to decide whether to stay or go.

There are 3 ways you could have a month-to-month lease.

First, all oral leases are month-to-month. If you never signed a written lease, you have a month-to-month oral lease. As a practical matter, though, a no smoking policy requires a written lease.

Second, some written leases are month-to-month. Most landlords prefer one-year leases, but on occasion will go written month-to-month.

The third way there can be a month-to-month lease is after a written lease expires. Then, It’s possible, but not automatic. It depends on what the landlord wanted the new “holdover tenancy” to be: month-to-month, or a renewal of the original lease term. When they don’t make a clear choice, things can get murky.

But, if your written lease is somehow month-to-month, the landlord could adopt a no smoking policy by giving you a 30 day written notice.

Bottom line: although the procedures may vary, a landlord who follows them correctly can make their property no smoking.